The words "eminent domain" can send shivers up the spine of property owners, particularly in the years following the U.S. Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the right of governments to take private property for economic redevelopment through the "eminent domain" process. Last week, the N.J. Supreme Court seemed to thumb its nose at Kelo by ruling 7-0 that the Gloucester County borough of Paulsboro could not seize a man's 63-acre tract merely because it was vacant. Was this really a "fairer and saner" use of eminent domain, as The Inquirer later intoned? In fact, following the Kelo decision, local governments nationwide have become gun-shy about using eminent domain, according to Philadelphia attorney Jim Ettelson, a specialist on the subject at Thorp Reed & Armstrong LLP. And he calls it a shame, because eminent domain can do a lot of good. In a Q&A with PhillyInc, the partner discussed the ramifications of the backlash against eminent domain.

PhillyInc: Are people still incensed about Kelo?
Ettelson: "After Kelo, everybody went nuts. … It was amazing to watch people come together in their mutual hatred. ... The fallout is still there."

PhillyInc: What's happened in the aftermath of the decision?
Ettelson: "The Kelo decision has caused an awful lot of political soul searching. … What I've seen across the country is a number of economic development projects which are on hold. That may be a good thing in some areas and a bad thing in others."

PhillyInc: How is the issued being addressed in Pennsylvania and New Jersey?
Ettelson: "Both states provide a public process. Both states provide for public hearings and comment. Both states provide for the right to object. The level of public (participation) varies among states."

PhillyInc: Isn't one of the major issues figuring out what's meant by blight?
Ettelson: " It's one of things like the definition of obscenity: I know it when I see it. Pennsylvania is struggling with that now. They passed some legislation under an urban development law (to address the issue). The question is does the property have to be environmentally hazardous ... or does it have to just be deteroriating."

PhillyInc: Is there any way to avoid the controversies?
Ettelson: "The effort on the part of municipalities has to include the community in its decision-making on eminent domain. It's costly and time consuming but extremely important. The problem is that the court system is deciding many of these cases. Subsequently, a lot of potentially viable projects die because they just can't survive."

PhillyInc: Are there any misconceptions about eminent domain that you'd like to address?
Ettelson: "That it's a totally negative process. ... I think it's an important tool for state and local governments, but property owners' rights have to be respected and accommodated where possible."

- Jonathan Berr

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